Commonwealth v. Raymond

• Decision Date: 27 May 2020
• Docket Number: No. 3617 EDA 2018,3617 EDA 2018
• Citation: 233 A.3d 809
• Parties: COMMONWEALTH of Pennsylvania v. Edmond RAYMOND, Appellant
• Court: Pennsylvania Superior Court

233 A.3d 809

COMMONWEALTH of Pennsylvania

v.Edmond RAYMOND, Appellant

No. 3617 EDA 2018

Superior Court of Pennsylvania.

Filed May 27, 2020

Argued March 4, 2020

Dennis J. Cogan, Philadelphia, for appellant.

Joanna R. H. Kunz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Appellant Edmond Raymond appeals the judgment of sentence entered by the Court of Common Pleas of Philadelphia County after a jury convicted Appellant of Intimidation of a Witness.¹ Appellant raises a sufficiency challenge to his conviction based on a defect in the criminal information. Appellant also claims this offense was improperly graded as a felony of the first degree. As the trial court did not allow for the proper factual findings to be made to determine whether the witness intimidation conviction could be graded as a felony, we vacate the judgment of sentence and remand for the trial court to grade Appellant's witness intimidation conviction as a second-degree misdemeanor.

Appellant was charged with Intimidation of a Witness, Retaliation Against a Witness, and Possession of an Instrument of Crime (PIC) in connection with his interactions with Rodger Pickens ("the complainant"). Prior to the instant offenses, the complainant had cooperated with law enforcement officials who charged Appellant's friend, Tony Tillman, with first-degree murder for the September 2015 fatal shooting of Aaron Walker. At Tillman's preliminary hearing, the complainant testified that Tillman had murdered Walker. Notes of Testimony (N.T.), 7/31/18, at 8-9, 11.

The complainant, Tillman, and Appellant knew each other well as they lived in the same neighborhood for years. As the complainant had agreed to testify against Tillman at his murder trial, the complainant was placed in the witness protection program and relocated to another neighborhood approximately ten to fifteen minutes away. The complainant testified that he was concerned for his safety in his former neighborhood and no longer kept in contact with friends there as he had been labeled a "snitch" and an "outcast" for testifying against Tillman. N.T. at 6-12.

Prior to Tillman's murder trial, on July 15, 2017, the complainant was outside with his wife and his daughter at his residence when Appellant approached in his vehicle. After Appellant exited the vehicle and greeted the complainant's family, the complainant's wife and daughter went inside the residence. N.T. at 14-15.

When the two men were alone, Appellant told the complainant, "I know where you was at. I would have done reached out and touched you, but I wanted to give you an opportunity to make shit right." N.T. at 16. The complainant interpreted Appellant's statement as an effort to convince him not to testify at Tillman's murder trial. After the complainant asked Appellant to leave, Appellant continued, "I've been up to the prison to see Tony. I know everything. And you got to make this shit right." N.T. at 17.

At that point, the complainant went back inside his residence, stood behind his bulletproof steel door, but peered outside to watch Appellant. The complainant saw Appellant go back into his car, grab a black firearm, and tuck it under his shirt. Appellant then asked the complainant, "[s]o what are you gonna do?" while he placed his hand on his gun. N.T. at 23. After the complainant shut his door, he heard Appellant say "I know where you're at." N.T. at 17, 21-23.

After Appellant drove away, he called the complainant's cell phone and stated, "I shouldn't have came. I don't want you to feel threatened." N.T. at 25. Appellant further indicated that he did not want to be involved as the matter was between the complainant and Tillman. N.T. at 68. As a result of this incident, the complainant relocated his family again to an unspecified address, which required his daughter to change schools. In November 2017, the complainant testified against Tillman at his trial at which Tillman was convicted of murder. N.T. at 28-29, 40-41.

The complainant testified about two subsequent incidents after Tillman's trial that caused him to believe he was being threatened as a result of his testimony against Tillman. First, in January 2018, the complainant observed two men in a van parked outside his home. The complainant recognized one of the men as Appellant's friend from his old neighborhood. N.T. at 34-38. Second, in April 2018, the complainant heard an urgent knock at his front door. When he looked outside, he did not see anyone but noticed a dead bird lying in front of the front door. The prosecution presented evidence that Appellant's nickname is Tweet. Appellant was incarcerated during these two events. N.T. at 43-45.

On August 1, 2018, a jury convicted Appellant of Intimidation of a Witness and Retaliation Against a Witness, but acquitted him of the PIC charge. On October 4, 2018, when the trial court was scheduled to proceed with sentencing, Appellant made an oral Motion for Extraordinary Relief, arguing inter alia , that there was insufficient evidence to support either of his convictions.²

Specifically, Appellant argued that he could not be convicted of Intimidation of a Witness under Section 4952(a)(1), which was the specific crime he was charged with in the criminal information. While Appellant conceded that the Commonwealth presented sufficient evidence to convict him of Intimidation of a Witness under Sections 4952(a)(2) and (a)(3), he claims the trial court did not have subject matter jurisdiction over those offenses as Appellant was never charged under those subsections. Appellant also challenged his Retaliation Against a Witness conviction, as there was no evidence to show that he made a specific threat or used violence to retaliate against the complainant for testifying at Tillman's preliminary hearing.

The trial court granted the motion with respect to Appellant's claim that there was insufficient evidence to support his conviction for Retaliation against a Witness and entered a judgment of acquittal notwithstanding the verdict on that charge. The trial court denied Appellant's Motion for Extraordinary Relief in all other respects.

On November 7, 2018, the trial court sentenced Appellant to six to twelve years’ incarceration. Appellant filed a timely post-sentence motion, which the trial court subsequently denied. Appellant filed a timely notice of appeal and complied with the trial court's direction to file a Concise Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b).

Appellant raises the following issues for our review:

I. Where, as here, the evidence at trial did not establish the elements of a violation of 18 Pa.C.S.[A.] § 4952(a)(1) [,] should not the trial court have entered an order arresting judgment on that charge?

II. Did not the trial court err in grading for sentencing the intimidation conviction as a felony of the first degree where, as here, none of the predicates for that grading under § 4952(b)(1) were present and, as such, the sentencing grade should have been a misdemeanor of the second degree?

Appellant's Brief, at 4.

Our standard of review is well-established:

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Reed , 216 A.3d 1114, 1119 (Pa.Super. 2019) (quoting Commonwealth v. Brown , 186 A.3d 985, 990-91 (Pa.Super. 2018) ).

Appellant was convicted of Intimidation of a Witness under Section 4952, which provides in relevant part:

§ 4952. Intimidation of witnesses or victims

(a) Offense defined.-- A person commits an offense if, with the intent to or with the knowledge that his conduct will obstruct, impede, impair, prevent or interfere with the administration of criminal justice, he intimidates or attempts to intimidate any witness or victim to:

(1) Refrain from informing or reporting to any law enforcement officer, prosecuting official or judge concerning any information, document or thing relating to the commission of a crime.

(2) Give any false or misleading information or testimony relating to the commission of any crime to any law enforcement officer, prosecuting official or judge.

(3) Withhold any testimony, information, document or thing relating to the commission of a crime from any law enforcement officer, prosecuting official or judge. ...

18 Pa.C.S.A. § 4952(a)(1)-(3).

The parties agree that Appellant was erroneously charged in the criminal information under Subsection 4952(a)(1), which relates to the intimidation of a witness or a victim into refraining from reporting information about a crime. There is no dispute that the facts of this case more closely align with the offenses set forth in Subsections 4952(a)(2) and (a)(3), which relate to the intimidation of a witness to give false testimony or withhold testimony relating to a crime.

As Appellant had already reported...